Heavy Fines for First Conviction of Director under Victoria's OHS Act

Posted on: 3 Dec, 2009 |
Contact:

Judge Allen of the County Court has
handed down the first conviction for a breach of s144 of the
Occupational Health and Safety Act 2004 (Vic)
(Act) following the death of an employee trapped
in the roller of a laundry ironing machine.

The company and the director were fined $750,000 and $65,000
respectively - a clear warning of the court's willingness to impose
significant fines on individuals.

Section 144 deals with the liabilities
of officers of bodies corporate and provides that if a body
corporate contravenes a provision of the Act or the regulations and
the contravention is attributable to an officer of the body
corporate failing to take reasonable care, the officer is guilty of
an offence and liable to a fine (not exceeding the maximum fine for
an offence constituted by a contravention by a natural person of
the provision contravened by the body corporate).

An officer of a body corporate is defined to include a person who
makes or participates in the making of decisions affecting the
whole or a substantial part of the body corporate's business. It
also includes a person who has the capacity to affect significantly
the body corporate's financial standing.

In determining whether an officer of a
body corporate is guilty of an offence, the court will
consider:

what the officer knew about the matter concerned;

the extent of the officer's ability to make, or participate in
the making of, decisions that affect the body corporate in relation
to the matter concerned;

whether the contravention by the body corporate is also
attributable to an act or omission of any other person; and

any other relevant matter.

The case

An employee of an industrial laundry business (the
Company) sustained fatal crushing injuries as a
result of becoming trapped in the roller of an ironing machine. The
employee was cleaning the top of the ironing machine when his
gloved hand caught in it.

The Company pleaded guilty to charges
of failing to provide and maintain a safe work environment and for
failing to provide adequate supervision and training for employees.
The director, as officer of the Company, was charged and pleaded
guilty for breaching s144 of the Act.

The court found that parts of the
ironing machine were inadequately guarded. Tread-plate covers were
neither fixed in place nor fitted with any form of electrical
interlock to prevent access to the moving rollers. Furthermore, the
covers did not completely cover the rollers.

CCTV footage, recorded and admitted as
evidence, showed workers (including the deceased) accessing the top
of the ironing machine while the machine was operating. It recorded
employees using the tread plates on top of the machine as access
platforms to replace broken fabric tapes, inspect rollers and
unblock items of linen.

The footage also showed the deceased
climbing on top of the machine and then using a cleaning mitt on
the surface of a roller.

The court heard there was no evidence
as to why the deceased went about the task as he did and that no
one had previously seen him use a glove before the incident.
Additional evidence was led to suggest the director had told
workers not to attempt accessing the machine while it was on.
However, Judge Allen said that while there was no reason for the
deceased to be where he was when he was caught by the machine, the
risk of injury or death was reasonably foreseeable and the
director, as an officer of the company, had failed to take
reasonable care for the safety of his workers.

There was no record of the Company
having undertaken hazard identification or risk assessment since it
was installed in the workplace.

The Company and the director were fined
$750,000 and $65,000 respectively.

Conclusion

After the fatality, the employer immediately took steps to ensure
the machine was adequately guarded, which Allen J regarded as proof
that the risks could have been easily addressed and acted on
earlier.

The court's willingness to impose
significant fines on individuals is a warning to all company
directors and leaders. Furthermore, Judge Allen stated that
deterring other companies from breaching safety laws played a large
role in his sentencing.

According to Acting Executive Director
of WorkSafe Victoria, Stan Krpan, WorkSafe has several other OHS
cases involving directors awaiting hearing or investigation.

Reminder

Section 144 imposes personal obligations on company directors and
leaders to ensure safety in the workplace. Those obligations
include:

the establishment of robust safety systems;

monitoring those safety systems;

ensuring there is adequate workplace supervision and
training;

providing information to workers; and

ensuring equipment is not only suited for the job but meets the
safety standards required in Australia.